Dallas Consolidated Traction Ry. Co. v. Randolph

• Decision Date: 19 September 1894
• Citation: 27 S.W. 925
• Parties: DALLAS CONSOLIDATED TRACTION RY. CO. v. RANDOLPH.
• Court: Texas Court of Appeals

27 S.W. 925

DALLAS CONSOLIDATED TRACTION RY. CO. v. RANDOLPH.

Court of Civil Appeals of Texas.

September 19, 1894.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Mrs. M. J. Randolph against the Dallas Consolidated Traction Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Leake, Shepard & Miller, for appellant. Wooten & Kimbrough, for appellee.

FINLEY, J.

Plaintiff brought this suit against appellant, alleging, in substance, that she boarded one of defendant's electric cars on Main street, in the city of Dallas, east of the Houston & Texas Central Railway; that, as the electric car approached the crossing on said railroad, the passengers discovered an engine approaching on the railroad from the south, and thereupon the motorman in charge of the electric car increased his speed, and that it appeared that a collision between the car and the engine was imminent, and that some man in the car jumped therefrom, shouting "Jump for your lives;" that the electric car was going at a great speed, and passed over the crossing just in time to escape being struck by the engine; that, before jumping, she rang the bell for the car to stop, but, instead of stopping, it was propelled at a greater rate of speed, and, to avoid what she considered an imminent collision, she jumped from the car close to the railroad track, and near the engine, and in doing so was thrown violently to the ground, knocked senseless, her ankle dislocated and fractured, and several of her ribs broken, whereby she was greatly injured. The appellant, with general denial and other defenses, pleaded especially that, if the plaintiff sustained any injuries, it was by reason of her own contributory negligence, because the motorman in charge of the electric car on which she was riding at the time had it under control, and was carefully operating it, when a negro man suddenly jumped from the platform of the car, which circumstance excited unnecessarily plaintiff's fear; that there was no danger of collision with the engine whatever; that she jumped from the car at a great distance from the crossing, which was a reckless act upon her part, and for which there was no excuse, as she was not exposed to any peril whatever. The trial resulted in a verdict and judgment for plaintiff in the sum of $4,500.

The first assignment of error complains of the charge of the court in the following paragraph: "You are told that the duty is imposed upon the Dallas Consolidated Traction Railway Company of having prudent and competent employés to manage and operate its cars running on its roads in the city, and for such employés to use reasonable and proper care and prudence in the management, running, and operating its cars, so as to carry with safety those who ride on the same." It is urged that this charge is erroneous in two respects: First, there was no issue raised by the pleadings and evidence as to the competency of defendant's motorman; second, the charge makes the defendant guaranty the safety of those who ride upon its cars....